1998 act required public shelters to release animals to any nonprofit takers
Tom Hayden, 76, best known as a civil rights activist and opponent of the Vietnam War, but also author of one of the most influential and controversial animal care and control laws ever, as an 18-year member of the California state assembly and senate, died on October 23, 2016 in Santa Monica, California.
Hayden’s wife, actress, singer, and reported vegetarian Barbara Williams, told media that his death, after a long illness, might have occurred from complications of a 2015 stroke.
Became Freedom Rider
Always fond of animals, yet rarely involved in animal issues, Hayden grew up in Royal Oak, Michigan, a Detroit suburb, and attended the University of Michigan in Ann Arbor, where he became editor of the student newspaper. Hitchhiking to California to cover the 1960 Democratic National Convention in Los Angeles, Hayden witnessed the nomination for U.S. president of John F. Kennedy, but after a sidewalk interview with Martin Luther King Jr., became more interested in the Deep South effort to register voters of African descent than in mainstream politics.
First visiting the Deep South later in 1960, Hayden met fellow activist Sandra “Casey” Cason, whom he married in 1961. Participating in desegregation campaigns, they returned to the South together as Freedom Riders in 1961.
Port Huron Statement
Arrested in McComb, Mississippi, and Albany, Georgia, Hayden brought his Deep South organizing experience to the 1962 Students for a Democratic Society conference in Port Huron, Michigan. There Hayden became chief author of the Port Huron Statement, the foundation document for more than a decade of campus activism, and a generation of political engagement by former student activists that continues to be felt in the nomination of then-student activist Hillary Clinton as Democratic candidate for U.S. president.
Opened the Port Huron Statement, “We are people of this generation, bred in at least modest comfort, housed now in universities, looking uncomfortably to the world we inherit.”
Newark, Hanoi, Chicago
Hayden moved on to political organizing in Newark, New Jersey, and to organizing against the Vietnam War. He traveled to Hanoi, then the capital of North Vietnam, and now capital of unified Vietnam, in 1965 and 1967, bringing back three U.S. prisoners of war the second time, who had been released to him by the Viet Cong.
In 1968 Hayden helped to lead an occupation by student dissidents of the administration building at Columbia University in Manhattan, then led anti-war protests at the Democratic National Convention in Chicago, where he was tear-gassed and also clubbed by police. Indicted with seven others for alleged conspiracy to incite a riot, Hayden was convicted of related charges, but the conviction was overturned on appeal.
Jane Fonda & political office
His marriage to Casen having ended in divorce, Hayden met actress Jane Fonda in 1971, before her controversial 1972 visit to Hanoi, and married her in 1973, after her return.
Losing his first bid for elected office in 1976, Hayden in 1982 won a seat in the California state assembly representing Santa Monica, Malibu and part of the west side of Los Angeles. A decade later Hayden used the settlement from his divorce from Fonda to win election to the California senate. While still a state senator, Hayden lost runs for governor and mayor of Los Angeles in 1994 and 1997, respectively.
His California senate tenure ended by term limits in 2000, Hayden in 2001 unsuccessfully sought a seat on the Los Angeles City Council.
The Hayden Act
Hayden introduced the Hayden Act, his best-known item of legislation and his only venture into animal advocacy, on February 18, 1998.
Often attributed to Nathan Winograd, then director of law and advocacy for the San Francisco SPCA, the Hayden Act was actually drafted chiefly by Taimie Bryant of the University of California at Los Angeles law faculty, and holder since 2004 of the Bob Barker Endowment Fund for the Study of Animal Rights Law at UCLA.
The Hayden Act, effective July 1, 1999, extended the minimum holding time for animals impounded by California public agencies, including birds, rodents, hooved species, and reptiles, from 72 hours to five business days, and required that after the holding time expired, animals must be released to any nonprofit agency willing to claim them.
The Hayden Act also required that impounded animals be scanned for microchip identification, prohibited shelters from gassing animals with carbon monoxide, and barred animal abusers from adopting shelter animals within three years of conviction.
Codified existing practice
The extension of the minimum holding time and requirement of scanning for microchip identification for the most part only codified existing practice. The federal Laboratory Animal Welfare Act of 1966, amended in 1971 into the more encompassing Animal Welfare Act of today, had required public shelters to hold impounded dogs and cats for at least five days before selling them to laboratories or laboratory animal suppliers.
While most shelters even then did not supply animals to laboratories, the five-day holding interval became the default standard for weaned dogs and cats throughout the U.S., except for those deemed to be incurably ill or injured and suffering, or too dangerous to keep safely.
But extended scope of holding policies
At a time when animal impounds far exceeded adoption demand, however, and spay/neuter had yet to become the norm, found or surrendered litters of unweaned puppies and kittens were usually killed at intake. Birds, rodents, hooved species, and reptiles, then as now, were relatively seldom received, and were often transferred to zoos, wildlife rehabilitators, and 4–H programs, rather than being held in public shelters.
By 1998 adoption demand for puppies other than pit bulls had long since exceeded intake throughout California. But unweaned kittens and cats too wild to handle were usually killed, and the standard 5-day holding period was often truncated to three days during times of exceptionally high intake.
Resistance & lawsuits
Communities throughout California resisted the longer holding interval required by the Hayden Act as an allegedly illegal “unfunded mandate” until state funding was apportioned to offset the costs of keeping animals for five days under all circumstances.
After that, at least four lawsuits were filed between 2004 and 2007 to win full observation of the five-day hold, in Kern, Kings, San Bernardino, and Mendocino Counties.
The Terminator & Governor Moonbeam
Facing a budget deficit of $15 billion, then-California governor Arnold Schwarzenegger had already tried to repeal the five-day hold as part of his proposed fiscal 2004-2005 budget.
The California Legislative Analyst’s Office had reported in December 2003 that repealing the Hayden Act could save the state $10 million a year in reimbursements paid to animal control shelters.
Amid a storm of public outrage, Schwarzenegger withdrew his proposal barely 24 hours after issuing it.
Current California governor Jerry Brown, addressing a $9.2 billion deficit, ran into comparable opposition when he sought to repeal the Hayden Act holding requirement in February 2012. By then, repealing the Hayden Act would have saved the state $23 million per year.
“Animals should not have to die”
“Animals should not have to die to clean up California’s mess,” Hayden said in a YouTube video, one of the few times he commented on Hayden Act outcomes.
Reported Sue Manning of Associated Press, “Over the years, 377 cities, counties, towns or animal control districts have been reimbursed $86 million and the state still owes $76 million, state officials said. Los Angeles has sought the most: more than $10 million. Contra Costa County was No. 2 with claims over $6 million.”
As of 2008, the California Legislative Analyst’s Office found, the Hayden Act appeared to have had a negligible effect on increasing animal rehoming. But it had apparently increased rehoming by about 1,100 animals per year in Los Angeles County, the largest and most geographically widespread animal control district in California, with six shelters altogether.
The net effect of the Hayden Act in reducing the numbers of animals killed in California shelters remains difficult to measure.
In the six years immediately preceding the Hayden Act, the dog and cat death toll in California shelters fell from 717,000 dogs (1991) to 588,000 (1997).
In the first five years following the Hayden Act, the toll dropped to 537,817 by 2003––but the annual rate of decline had somewhat slowed.
Since then, California shelter killing of dogs and cats has continued to fall, to 410,739 as of 2014. The overall rate of decrease has remained steady at about 18,000 to 19,000 animals per year.
Lack of standards
The more problematic aspect of the Hayden Act proved to be the provision that animals whose holding time has elapsed must be released to any nonprofit agency willing to take them.
The Hayden Act did not require nonprofit agencies to meet any animal welfare or public health and safety standards before receiving animals from animal control.
Neither did the Hayden Act––although it prevented individuals from adopting animals within three years of a conviction for animal abuse or neglect––require the key personnel of the nonprofits receiving the animals to undergo criminal background checks, including screening to be sure they had no personal history of convictions for animal cruelty and neglect.
Avoided delegating supervisory authority
Indeed, the Hayden Act did not even require nonprofit organizations receiving animals to operate animal shelters, or have other appropriate facilities, for whatever animals they claimed.
To add such requirements would either have required creating a new statewide regulatory body in California, or would have required allowing animal control shelters to exercise a degree of discretion in approving “adoption partner agencies” which many “no-kill” sheltering proponents believed would lead to the animal control shelters disqualifying their most vehement critics.
The failure of the Hayden Act to incorporate standards for nonprofits receiving animals was exposed soon after it passed, but before it took effect, when the operators of three California “no-kill” rescue networks were convicted of involvement in dogfighting.
Mass neglect & public safety
At least 30 nonprofit “no kill” animal shelters and rescues in California have been successfully prosecuted for mass neglect since the Hayden Act took effect, some of them only after they “rescued” hundreds of animals over many years’ time.
The Hayden Act has also had problematic effects on public safety. Former San Diego Humane Society & SPCA president Mark Goldstein lost his job in 2011, and in May 2013 won a wrongful dismissal settlement of $1.1 million, after a high-profile confrontation with volunteers who argued that the Hayden Act required the shelter to release to other agencies for adoption dogs, mostly pit bulls, whom Goldstein deemed unsafe.
“We don’t want to take the life of an animal if we don’t have to,” Goldstein told Ray Huard of the North County Times, “but at the same time we want to protect the community.”
More bites & fatalities
Arbitrator Patricia Ann Yim Cowett ruled that the San Diego Humane Society & SPCA illegally forced Goldstein out of his job after he returned from a five-month leave of absence taken due to rheumatoid arthritis, depression, and anxiety disorders.
Goldstein correctly apprehended that a relaxed regulatory attitude toward pit bulls could have catastrophic consequences. No San Diego County residents were killed by pit bulls during his San Diego Humane Society & SPCA tenure, but six have been killed in the five years since. The most recent victim, three-day-old Sebastian Caban was killed on April 22, 2016 by a pit bull who had been rehomed by the San Diego Humane Society & SPCA.
“Before the Hayden Act,” wrote longtime southern California animal advocate Pat Dunaway in a September 2012 online critique of the act, “California had 35,102 reported dog bites and 8,211 reported cat bites. In 1998, 503,559 dogs were processed in the shelters and about 7% of those were for dog bites. But in 2010, California had 42,434 reported dog bites and 10,053 cat bites, with a dwindling canine intake of 467,096 and a rise in feline takes of 400,433. That means that 9% of the intake were for dog bites. Quite an increase. Coincidence?”
Hayden Act was model for Delaware CAPA
Despite the shortcomings of the Hayden Act, which could mostly be fixed by an amendment requiring nonprofit organizations to meet appropriate standards before receiving animals, it has been largely replicated in a draft Companion Animal Protection Act promoted since 2007 by No Kill Advocacy Center founder Nathan Winograd.
Enacted in Delaware as the Companion Animal Protection Act of 2010, CAPA failed spectacularly in November 14, 2013 with the closure of the Safe Haven no-kill shelter in Georgetown, just 17 months after it took over the biggest animal control contract in Delaware, accounting for more than half of the total impoundments and killing in the state.
Delaware shelter duties jobbed out-of-state
After other Delaware shelters proved unable to meet the CAPA requirements through contractual agreements with cities and counties, the state legislature in mid-2015 reluctantly took over responsibility for allocating animal control contracts.
Losing a bid to handle the entire state animal control sheltering job to the Brandywine Valley SPCA in Chester County, Pennsylvania, the 143-year-old Delaware SPCA subsequently closed its newly renovated flagship shelter in Stanton, put the building up for sale, and is now operating only a smaller shelter in Sussex County.
“Some people are awfully goofy”
Meanwhile back in California, Tom Hayden in late 2007 collected information on deer/car roadkills and roadkill prevention from ANIMALS 24-7 editor Merritt Clifton, contemplating a roadkill prevention campaign that never developed.
“As for people’s various sensitivities, as a former tobacco chewer, occasional vegetarian, and friend of plenty of hunters,” Hayden commented of the perceived difficulty of getting hunter/conservationists and animal advocates to cooperate in seeking a shared goal, “all I can really say is that some people are awfully goofy.”
Hayden was author of more than a dozen books, the last of which, Hell No: The Forgotten Power of the Vietnam Peace Movement, is to be published by Yale University Press in March 2017.
In addition to his wife, Hayden is survived by their adopted son Liam and actor Troy Garity, his son with Jane Fonda.